RELIGIOUS EXERCISE IN PRISON – A GUIDE FOR
PRISON OFFICIALS
Trudy Rushforth*
The Religious Land Use and Institutionalized Persons Act (RLUIPA)
prohibits any prison receiving federal funds from substantially burdening
the religious exercise of its prisoners unless the burden survives strict
scrutiny. This paper will discuss specific accommodations that a prisoner
might request and propose solutions that will preserve the inmate’s right to
free exercise of religion while still maintaining prison security. Specific
accommodations discussed will be: dress and grooming accommodations,
dietary accommodations, and ceremonial accommodations. This paper can
serve as a guide to prison officials when they are faced with an
accommodation request.
INTRODUCTION
Approximately 91% of individuals incarcerated in prison profess a
religious affiliation.1 This is a higher percentage than the U.S. population as
a whole, where approximately 83% of people claim a religious affiliation.2
Many of these people choose to continue practicing their religion while
incarcerated, and to do so, they may need to request permission to deviate
from the standard dress, diet, or schedule to which inmates are subject.
Some people, as a part of their religious practice, maintain specific dress or
grooming standards that conflict with prison uniformity. This could include,
for example, growing a beard, wearing a head covering, wearing religious
jewelry, or refraining from cutting hair. Dietary practices could include
adhering to a vegetarian diet, abstaining from certain ingredients such as
pork or shellfish, refraining from the mixing of dairy and meat products, or
adhering to certain restrictions on how food is handled or prepared.
Ceremonial practices could include attendance at worship services, prayer
or meditation, observance of holy days, or study of religious reading
material.
There can be tension between a prisoner’s request for accommodation of
a religious practice and a prison’s interest in safety or cost. For example,
prison officials have claimed that some religious attire presents a safety
*

J.D. Candidate 2011, Santa Clara University School of Law. B.S. 2003, Santa Clara
University. I would like to express my sincere gratitude to David Ball for his feedback
and guidance.
1
Enforcing Religious Freedom in Prison, U.S. Commission on Civil Rights, 2008 at
13.
2
U.S. Religious Landscape Survey, Pew Forum 2008, at 8.

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hazard. Likewise, they have claimed that some religiously mandated diets
are prohibitively expensive. Either of these situations will likely cause
prison officials to deny the request for accommodation. If a prisoner’s
request for accommodation is denied, he or she may file an administrative
grievance. Unsuccessful grievances may result in lawsuits. Religious
minorities tend to file suit more frequently than those who practice more
widely adhered to faiths,3 though the success rate in litigation is comparable
across religions.4
The purpose of this paper is to provide a framework for understanding
the law and procedure for addressing a religious accommodation request.
This paper deals solely with the religious practices of individual prisoners
and does not address the Establishment Clause or Free Exercise Clause
issues that are present in religiously based prison programming. Part I will
discuss the requirements of the Religious Land Use and Institutionalized
Persons Act,5 which is the primary statute governing the religious freedom
of state prison inmates.6 It will also cover the procedural issues surrounding
prisoner litigation, including the Prison Litigation Reform Act.7 Part II will
explain that, in addition to avoiding liability, religious accommodation of
prisoners is beneficial to prison officials because it decreases gang
affiliation, makes use of the skills of chaplains, increases prisoner morale,
and promotes rehabilitation.
I. THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT
The Religious Land Use and Institutionalized Persons Act
(RLUIPA) is the primary law governing the religious exercise of prisoners.
RLUIPA provides greater protection than the First Amendment.8 Section A
will provide a brief overview of religious accommodation law. Section B
will discuss the substantive requirements of RLUIPA. Section C will
discuss the procedural requirements of RLUIPA, including its interaction
3

Jews make up 1.9% of the prison population and file approximately 16% of RLUIPA
suits. Muslims make up 9.3% of the prison population and file 29.6% of RLUIPA
suits. By contrast, Christians make up 66.2% of the prison population and file only
10.8% of RLUIPA suits. Enforcing Religious Freedom in Prison, supra note 1 at 82.
4
Id. The fact that all religions enjoy roughly equal success rate is important in
insulating RLUIPA from as-applied Establishment Clause challenges. See Cutter v.
Wilkinson, 544 U.S. 709 (2005), infra note 23.
5
42 U.S.C. § 2000cc et seq.
6
The statute applies to anyone “residing in or confined to an institution”. For the sake
of simplicity, this paper will refer to these individuals as “prisoners” or “prison
inmates”, even though jail inmates and those residing in mental health facilities are
also covered under the statute.
7
42 U.S.C. § 1997(e).
8
Section IA, infra, discusses the requirements of the First Amendment. Section IB,
infra, discusses the requirements of RLUIPA.

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Religious Exercise in Prison

3

with the Prison Litigation Reform Act, ways that prisons can avoid liability
under RLUIPA, and remedies inmates can receive for violations of
RLUIPA.
A. Brief Overview of Religious Accommodation Law
“Prison walls do not form a barrier separating prison inmates from the
protections of the Constitution.”9 One of the protections of the Constitution
is the right to free exercise of religion.10 Outside of a prison context, laws
that on their face burden the free exercise of religion are subject to strict
scrutiny.11 In order for a law to pass strict scrutiny, the state’s interest must
be compelling and there must be no alternative way for the state to achieve
that compelling interest.12
In 1990, the U.S. Supreme Court had an opportunity to consider a
challenge to Oregon’s statute prohibiting the use of peyote, a
hallucinogen.13 The statute prohibited all use of the substance. Two
individuals who used peyote as a part of their religious worship sued,
claiming that the law violated their First Amendment rights. The Court held
that the law did not violate the First Amendment.14 The rule announced was
that laws that apply to conduct without regard to whether that conduct is
religiously motivated and do not burden religious exercise on their face are
subject to the more deferential rational basis standard, which means that a
law need only be rationally related to a legitimate government goal, not the
considerably more exacting standard of strict scrutiny.15
In response, Congress passed the Religious Freedom Restoration Act
(RFRA) in 1993, which required laws burdening religious exercise, even if
they result from a generally applicable rule, to be subject to the strict
scrutiny test.16 In 1997, the Supreme Court struck down RFRA as applied to
the states because it exceeds the authority granted to Congress under the
14th Amendment.17 RFRA still applies to the federal government.18
9

Turner v. Safley, 482 U.S. 78, 84 (1987).
U.S. Const. Amend. I “Congress shall make no law...prohibiting the free exercise [of
religion].”
11
See Sherbert v. Verner, 374 U.S. 398, 406 (1963).
12
Id. at 407.
13
Employment Div., Dep’t. of Human Resources of Oregon v. Smith, 494 U.S. 872
(1990).
14
Id.
15
Id.
16
See 42 U.S.C. § 2000bb et seq.
17
City of Boerne v Flores, 521 U.S. 507 (1997).
18
See, e.g. O'Bryan v. Bureau of Prisons, 349 F.3d 399, 400-401 (7th Cir. 2003);
Guam v. Guerrero, 290 F.3d 1210, 1220-1222 (9th Cir. 2002); Kikumura v. Hurley,
242 F.3d 950, 958-960 (10th Cir. 2001); In re Young, 141 F.3d 854, 858-863 (8th Cir.
1998).
10

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Congress responded by passing the Religious Land Use and
Institutionalized Persons Act (RLUIPA) in 2000.19 RLUIPA restores the
strict scrutiny test for burdens on religious exercise resulting from rules of
general applicability.20 RLUIPA is narrower than the Religious Freedom
Restoration Act, in that it only applies to exercises of religion in land use or
of persons residing in or confined to certain types of institutions.21 Prisons
that receive federal funding are institutions covered under RLUIPA, as are
any prison programs or activities that have an effect on interstate
commerce.22 All state prison systems receive federal funding.23
The U.S. Supreme Court unanimously upheld the constitutionality of
RLUIPA against an Establishment Clause24 challenge because it treats all
religions equally and because it “alleviates exceptional government-created
burdens on private religious exercise.”25 Prisoners have their liberty
curtailed to a great degree, so they are at the mercy of the government in
their ability to practice their religion.26 Removing the burden on practicing
religion is not establishing a religion; it is simply restoring the inmates’
religious liberty.
The Court noted, however, that “Properly applying RLUIPA, courts
must take adequate account of the burdens a requested accommodation may
impose on nonbeneficiaries.”27 Lower courts have applied the requirement
to take into account the burdens to nonbeneficiaries as part of the strict
scrutiny analysis, construing it as a cost consideration.28
B. What RLUIPA Requires of Prisons
RLUIPA states, in relevant part:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an
institution…even if the burden results from a rule of general
applicability, unless the government demonstrates that
imposition of the burden on that person-- (1) is in furtherance of
a compelling governmental interest; and (2) is the least restrictive

19

42 U.S.C. § 2000cc et seq.
Id.
21
Id.
22
42 U.S.C. § 2000cc-1(b)(1).
23
Cutter v. Wilkinson, 544 U.S. 709 (2005).
24
U.S. Const. Amend. I “Congress shall make no law respecting an establishment of
religion...”
25
Cutter, 544 U.S. at 720.
26
Id. at 721.
27
Id. at 720
28
See infra Part IB3.
20

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Religious Exercise in Prison

5

means of furthering that compelling governmental interest.29
Most RLUIPA cases are resolved at the District Court level.30 As a
result, there is not a definitive body of law clearly laying out the precise
contours of the statute. Instead, principles must be derived from a collection
of assorted decisions across lower federal courts, with the occasional Court
of Appeals case to resolve larger issues. This section will discuss how the
statute and courts have defined and applied the terms “government”,
“religious exercise”, “substantial burden”, “compelling interest”, and “least
restrictive means”.
1.

Government
RLUIPA defines government as: (i) a State, county, municipality, or
other governmental entity created under the authority of a State; (ii) any
branch, department, agency, instrumentality, or official of an entity listed in
clause (i); and (iii) any other person acting under color of State law.”31
Since state prisons are agencies of a state, they are considered as
government for the purposes of RLUIPA. Individual prison guards are
acting under the color of state law, so they are considered government as
well. Contract chaplains are not considered to be state actors under
RLUIPA.32
2.

Religious exercise
A religious exercise is “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.”33 Small or
uncommon religions receive the same protection as large or common ones.
Courts do not look to the orthodoxy of the plaintiff’s beliefs, only the
sincerity. A prisoner is still protected under RLUIPA for practices not
shared by his or her denomination.
An inmate who was a member of the Ordo Templi Orientis (OTO), a
group associated with the Thelema religion, requested a vegetarian diet.
Thelema was founded in 1904 by Aleister Crowley, and the central mandate
29

42 U.S.C. § 2000cc-1(a)
Of the 881 RLUIPA cases found in Westlaw as of February 2010 using the terms
“RLUIPA”, “prison”, and “substantial burden”, 769 of them were district court cases.
Only one, Cutter v. Wilkinson, supra note 23, was a U.S. Supreme Court case. See
Taylor G. Stout, The Costs of Religious Accommodation in Prisons, 96 Va. L.Rev
1201, n.3 (2010).
31
42 U.S.C. §2000cc-5(4)(A). The land use portions of RLUIPA also apply to the
federal government. Federal prisoners are not protected under RLUIPA and instead
must bring suit under RFRA.
32
Florer v. Congregation Pidyon Shevuyim, __ F.3d__, 2011 WL 1441879 (9th Cir.
2011).
33
42 U.S.C. § 2000cc-5(7)(A).
30

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of the religion is to find one’s true purpose in life.34 The prison outreach
coordinator for the OTO testified that “Thelema imposes no general dietary
restrictions; though each individual Thelemite may, from time to time,
include dietary restrictions as part of his or her personal regimen of spiritual
discipline.”35 The court held that under RLUIPA, the plaintiff’s request for a
vegetarian diet as a part of his spiritual practices constituted a religious
exercise.36
Sincerity is a factual inquiry. Some factors that courts consider include
how long the plaintiff has claimed to practice the religious exercise,37 or the
convenience or inconvenience of the exercise.38 Prisoners are permitted to
change their religious affiliation and still claim RLUIPA protection for their
new practices.39 However, if a prisoner constantly changes his or her
religion, the practices are less likely to be viewed as sincere. An inmate
does not need to use the term “religion” to describe religious exercise in
order for that exercise to be protected. For example, the Nation of Gods and
Earths, a group that broke off from the Nation of Islam in the 1960’s,
describes itself as a “way of life” instead of a religion.40 Members of the
Nation of Gods and Earths observe feast days and dietary restrictions.41
They reject the term “religion” to describe their beliefs, since they attribute
that term to false belief systems.42 An inmate who was a member of the
Nation of Gods and Earths brought suit under RLUIPA because he was
denied reading materials and formal gatherings with those who shared his
beliefs.43 The state opposed, claiming that since the prisoner did not call his
beliefs a religion, he could not claim protection for religious exercise.44 The
court noted that just as calling something a religion does not make it a
religion under RLUIPA, refusing to call something a religion does not
disqualify it from protection as a religion under RLUIPA.45 The court held
that the practices of members of the Nation of Gods and Earths qualified as
religious exercises under RLUIPA because they are similar in nature to
other recognized religions and filled the same place in a believer’s life.46
34

Koger v Brayn, 523 F.3d 789, 794 (7th Cir. 2008).
Id.
36
Id.
37
Id.
38
Id.
39
Id.
40
See Marria v. Broaddus, unreported, 2003 WL 21782633 (S.D.N.Y. 2003)
41
Id.
42
Id.
43
Id.
44
Id.
45
Id.
46
Id.
35

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Religious Exercise in Prison

7

While a belief system need not be called a religion to qualify, it must
have some religious purpose. An atheist inmate attempted to form a group
of atheists, humanists, freethinkers, and people with no religious
affiliation.47 When his request was denied, he brought suit under RLUIPA.
The court held that this proposed meeting group was not a religious practice
because the spectrum of religious affiliations and non-affiliations made it
more like a secular debate society.48 The denial of the request was,
therefore, not a violation of RLUIPA.49
3. Substantial burden
The determination of whether an inmate’s religious exercise has been
substantially burdened is fact-specific. Courts have considered, among other
things, whether the exercise is prohibited entirely, what alternatives are
available, and whether the inmate would have to forgo any privileges in
order to exercise his or her religion. An inmate who was a member of the
Yahweh Evangelical Assembly wished to observe the Sabbath and other
holy days.50 The prison had a regulation that religious services must be
conducted by an outside volunteer.51 There was a volunteer who came
approximately once per month but who was unable to come more frequently
due to his other ministerial duties.52 The inmate sued, claiming that because
he was only able to attend worship services monthly instead of weekly, his
religious exercise was substantially burdened.53 The Fifth Circuit noted that
the plaintiff was permitted to attend services whenever a volunteer was
present, and that the prison was not prohibiting him from attending those
services.54 Although the services were less frequent than he would have
liked, that was not the fault of the prison, so the prison was not imposing a
substantial burden on his religious exercise.55
In Arkansas, an inmate who was a member of the Church of Jesus
Christ of Latter-day Saints was on lockdown.56 The prison had a policy that
inmates on lockdown were permitted only one religious book.57 The inmate
indicated that he required both a Bible and a Book of Mormon in order to
47

See Kaufmann v. Schneiter, 474 F.Supp. 2d 1014, 1027 (W.D.Wis. 2007).
Id.
49
Id.
50
Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004).
51
Id. at 571. The court accepted the requirement for outside volunteers at face value
and did not question it. For a reason not specified by the court, Muslims were exempt
from this requirement.
52
Id.
53
Id.
54
Id.
55
Id.
56
Blount v. Echols, 2009 WL 1110815 (W.D. Ark. 2009).
57
Id.
48

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properly practice his religion.58 The guard informed him that he had to
choose one or the other.59 When he indicated that he could not choose, the
guard confiscated his Bible.60 He sued, and he lost because his cellmate had
a Bible that he could use, and the cellmate testified that he had offered the
use of his Bible to the plaintiff.61 The plaintiff’s religious practice was,
therefore, not substantially burdened.62
For an example of a substantial burden, a Jewish inmate in Nevada
wished to receive kosher meals. He made the request to prison officials, and
he was informed that his receipt of kosher meals was conditioned on
transferring to a higher level of security.63 The district court held that the
inmate was substantially burdened in his religious practice because he
would have to give up some of the freedom he enjoyed at a lower security
facility.64
4. Compelling government interest and least restrictive means
Prison safety and security is a compelling government interest.65 Cost
may also be a compelling interest.66 Cost is considered as part of the
analysis of burdens on nonbeneficiaries required in Cutter.67 Even if there is
a compelling interest, a substantial burden may only be imposed if it is the
least restrictive means of furthering that interest.68 A burden is only the least
restrictive means if there is not a less burdensome way of achieving the
compelling interest.69
If cost is an issue, the least restrictive means will probably not be an
outright denial of the accommodation request. Requiring a plaintiff to
obtain donated materials is less restrictive than a denial. For example, a
Muslim inmate in California requested halal meals. He was given the option
of obtaining donated meals that would satisfy his dietary requirements.70
Requiring the inmate to pay for the requested accommodation is likewise
less restrictive than a denial.
When security is an issue, a bit of creativity can solve the problem. In
58

Id.
Id.
60
Id.
61
Id.
62
Id.
63
See Shilling v. Crawford, 536 F. Supp. 2d 1227, 1233 (D. Nev. 2008).
64
Id.
65
See Cutter v. Wilkinson, 544 U.S. 709, 722-723 (2005).
66
Id.
67
Id. at 720.
68
42 U.S.C. §2000cc-1(a)
69
Cf. Shelton v. Tucker, 364 U.S. 479, 488 (1960).
70
Watkins v. Shabazz, 180 F.Appx. 773 (9th Cir. 2006).
59

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Religious Exercise in Prison

9

Massachusetts, a group of inmates in administrative segregation wished to
attend worship services, and their request was denied.71 When the case went
to trial, the court held that the security interests of the prison were
compelling, but that an outright denial of access to worship services was not
the least restrictive means of achieving the compelling interest.72 The prison
was ordered to allow the inmates to participate in services by closed circuit
television.73
An illustrative example of where security would trump religious
exercise would be in the case of a Sikh inmate who wishes to wear a
ceremonial dagger called a kirpan. There have been no RLUIPA cases
regarding a kirpan, but there have been RFRA cases in non-prison contexts
that address similar issues. In California, three children were prohibited
from wearing their kirpan at school, pursuant to a school-wide ban on
weapons.74 They brought suit under RFRA claiming that their religious
practice was being substantially burdened. The Ninth Circuit held that a
wholesale ban on the wearing of the kirpan was unduly burdensome. A
compromise was devised whereby the children would wear a kirpan with a
dulled blade, the kirpan would be sewn into a cloth sheath so that it could
not be drawn, and that it would be secured beneath the clothing so that it
would not be visible.75
In a prison context, even a concealed, sheathed kirpan may still present
a security risk. However, a wholesale ban still may not be the least
restrictive means of maintaining security. Another possibility is permitting a
symbolic representation of a kirpan, such as on a pendant.76 If the plaintiff
finds this option insufficient, the prison will likely win the RLUIPA suit
because there are no less restrictive means to accommodate the practice.
C. Procedural Issues
RLUIPA is to be construed broadly to provide the maximum protection
permitted by the Constitution.77 This means that prison officials should be
looking for ways to accommodate religious practices, not excuses to
prohibit them. There are, however, some procedural issues involved in a
prisoner’s request for accommodation of religious exercise.

71

Crawford v. Clarke, 578 F.3d 39 (1st Cir. 2009).
Id. at 42.
73
Id.
74
Cheema v. Thompson, 67 F.3d 883 (9th Cir. 1995).
75
Id. at 886.
76
This alternative was suggested in a religious accommodation case in Canada with
facts similar to the Cheema case supra note 74. Although Canadian law has no bearing
on U.S. law, the issues faced are similar enough to provide an instructive analogy.
77
42 U.S.C. §2000cc-3(g).
72

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1. Prison Litigation Reform Act
RLUIPA suits by prisoners are subject to the Prison Litigation Reform
Act (PLRA).78 PLRA states that
No action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted.79
The requirement for administrative exhaustion applies even if the
administrative proceedings cannot grant the desired relief,80 but if the
administrative remedies are not clearly articulated, they may be deemed to
be not available.81 PLRA does not apply to suits by those who have been
released from prison.82 The statute of limitations for a suit under RLUIPA is
four years from the imposition of the substantial burden on the plaintiff’s
exercise of religion.83
The administrative grievance procedure can be a way to reduce
successful prisoner lawsuits. If prisoners’ religious practices are
accommodated before the administrative remedies are exhausted, there will
be no need for prisoners to sue.
While a practice does not need to be compelled by or central to an
inmate’s religion, merely sincerely motivated by it,84 chaplains can assist in
the resolution of disputes between prisoners and prison officials. Chaplains
should have a working knowledge of the religious beliefs and practices
represented in the prison population. As neutral parties, representing neither
the prisoner nor the prison officials, they are well situated to help come up
with solutions that will satisfy everyone.
A perfect example of where a chaplain would have been able to
intervene to prevent litigation is in the case where the inmate wanted both a
Bible and a Book of Mormon.85 The prison guard indicated that she was
ignorant of the tenets of the inmate’s religion.86 This is understandable.
Prison guards cannot be expected to know the details of countless disparate
78

42 U.S.C. §2000cc-2(e).
42 U.S.C. §1997e(a).
80
See Porter v. Nussle, 534 U.S. 516 (2002).
81
See, e.g. In re Bayside Prison Litigation, 190 F.Supp. 2d 755 (D.N.J. 2002).
82
See 42 U.S.C. §1997e(a).
83
See 28 U.S.C. § 1658(a). “Except as otherwise provided by law, a civil action arising
under an Act of Congress enacted after the date of the enactment of this section may
not be commenced later than 4 years after the cause of action accrues.” §1658 was
enacted in 1990, and RLUIPA was enacted in 2000.
84
See supra note 31 and accompanying text.
85
See supra note 56 and accompanying text.
86
Blount v. Echols, 2009 WL 1110815 (W.D. Ark. 2009).
79

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Religious Exercise in Prison

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religions.
If the plaintiff’s cellmate had not had a Bible or had been unwilling to
lend it to the plaintiff, then there would have been a substantial burden on
the plaintiff’s religious exercise. A chaplain should have detailed
knowledge of the religious beliefs and practices of the prison inmates and
should have been able to propose a solution that would have satisfied all
parties. There are editions where the Bible and Book of Mormon are
published together in one volume.87 Obtaining one of those editions, either
at the inmate’s cost or at the cost of the prison library, would have been less
restrictive than forcing the inmate to choose which book to keep.
2. Avoiding liability
Once a prisoner has demonstrated a substantial burden on his or her
religious exercise, the burden shifts to the government to demonstrate that
the burden was the least restrictive means of furthering a compelling
government goal.88 If the prison can demonstrate this, then there is no
violation of RLUIPA.
If a prison is substantially burdening a religious exercise without
meeting the strict scrutiny test, liability under RLUIPA can be avoided in
one of three ways. First, the prison may change the policy that results in the
substantial burden.89 An example of this would be to change or rescind a
generally applicable prison policy that has a substantial burden on some
inmates’ religious exercise. Second, the prison may keep the policy but
make an exemption for the substantially burdened religious exercise.90 This
is the most typical solution. Allowing a prisoner to deviate from standard
dress or grooming policies would be this type of exemption. Third, the
prison may eliminate the substantial burden in another way.91 An example
of this would be finding a creative solution that allows the inmate to
practice his or her religion within the boundaries of the prison rules. In the
case of the inmate who required both a Bible and a Book of Mormon, but
where the prison regulations only permitted one book, obtaining a combined
edition of the book would be an example of this third method of eliminating
a substantial burden. Transferring the prisoner to another facility will moot
a claim for declaratory or injunctive relief, but it will not moot a claim for
damages.92
87

See e.g. http://store.lds.org/webapp/wcs/stores/servlet/Product3_10705
_10551_21230_-1__197038. (Last visited April 23, 2011).
88
42 U.S.C. §2000cc-2(b)
89
42 U.S.C. §2000cc-3(e)
90
Id.
91
Id.
92
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311-1312 (10th Cir. 2010).

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3. Remedies
The prisoner can file a suit on his or her own behalf, and the United
States can also file suit on behalf of a prisoner or intervene in a prisoner’s
suit to seek enforcement of RLUIPA.93 When a lawsuit is filed, the United
States may seek injunctive or declaratory relief against the state,94 and an
individual may seek “appropriate relief” against the state.95 Appropriate
relief can take the form of injunctive or declaratory relief, but not monetary
relief.96 Monetary relief against the state is unavailable under RLUIPA
because of sovereign immunity. The U.S. Supreme Court held that the
phrase “appropriate relief” was not clear and unequivocal enough to put a
state on notice that it would be waiving immunity by accepting federal
funding for prisons.97
II. BENEFITS OF RELIGIOUS ACCOMMODATION OF PRISONERS
In addition to being legally required, religious accommodation of
prisoners is beneficial. There are two types of benefits that religious
accommodation of prisoners can provide. There are objective benefits to
society as a whole, and there are subjective benefits to the prisoners
individually.
A. Objective Benefits of Religious Accommodation
Some objective benefits that come from accommodating the religious
practices of inmates are: reduced litigation costs, increased prison safety,
and decreased conflict due to the counseling and dispute resolution services
of chaplains.
1. Reduced cost
Prison officials often resist religious accommodation requests, citing
cost as a reason.98 However, accommodating religious exercise can also
save money. Between 2001 and 2005, there were 250 RLUIPA cases filed
in federal courts.99 It still costs money to defend against a suit, even when
the state is successful. If prisoners’ practices are accommodated, even
when, strictly speaking under the law they do not need to be, there will
likely be fewer suits because there will be fewer disgruntled prisoners. One
93

42 U.S.C. §2000cc-3(f)
Id.
95
42 U.S.C. §2000cc-2(a)
96
See Sossamon v. Texas, 536 U.S. ___ (2011).
97
Id.
98
Enforcing Religious Freedom in Prison, supra note 1 at 93. Seventeen percent of
RLUIPA cases included in the study period were based on a denial of accommodation
where the state claimed that the accommodation was too costly.
99
Id.
94

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example of a lawsuit that the prison ended up winning that would have been
cheaper to accommodate than to litigate is in the case where the inmate
wanted both a Bible and a Book of Mormon and the prison only allowed
one book. A volume that contains both costs a mere thirty-five dollars.100
The state undoubtedly spent more money than that in defending against the
suit.
2. Increased prison safety
Prisoners, who are removed from society, form societies of their own
within the prison walls.101 This prison society can often be destructive in
nature.102 Violence is a concern, and gangs are ubiquitous. In some
instances, gang membership is virtually mandated by prison culture.103
Individuals who practice religion are to some degree insulated from these
destructive influences.104 For example, inmates tend not to expect practicing
Christians to join gangs.105 When interviewed, one anonymous inmate
reported
I don’t know what it is but they [other inmates] don’t bother
church going people. So I think mainly it’s a way of escaping a
lot of assaults and confrontations. People probably leave them
alone depending on how they believe and they see them doing
something that they should be doing themselves. That’s how
they were brought up themselves, to respect faith and the
churchgoing folks.106
Religiously observant inmates can have a certain credibility among the
prison population which allows them to mediate disputes between inmates
and to avoid violent confrontations.107 The prison chapel is seen as a safe
place where even the most reviled criminals can find physical, in addition to
spiritual, solace.108 If religious practices are accommodated, the respect that
inmates give to religion and practitioners of religion can be leveraged to
100

See supra note 87.
Jim Thomas & Barbara Zaitzow, Conning or Conversion? The Role of Religion in
Prison Coping, 86 THE PRISON JOURNAL 242, 244 (2006).
102
Id.
103
See generally Brian Colwell, Deference or Respect? Status Management Practices
Among Prison Inmates, 70 SOCIAL PSYCH. QUARTERLY 442 (2007).
104
See Kent R. Kerley, Todd L. Matthews & Troy C. Blanchard, Religiosity, Religious
Participation, and Negative Prison Behaviors, 44 JOURNAL FOR THE SCIENTIFIC
STUDY OF RELIGION 443 (2005). The study found that among religious inmates,
antisocial behavior, especially fighting with other inmates, was lower.
105
Colwell, supra note 103.
106
Id. at 451.
107
Todd R. Clear, Patricia L. Hardyman, et al, The Value of Religion in Prison : An
Inmate Perspective, 16 JOURNAL OF CONTEMP. CRIM. JUSTICE 53, 65 (2000).
108
Id.
101

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reduce conflict in the prison population.
3. The role of chaplains
By making use of chaplains to facilitate the religious exercise of
prisoners, additional benefits can be gained. In addition to providing
religious services, chaplains also provide grief counseling, marriage
counseling, and dispute resolution.109 They also can act as liaisons between
correctional institutions and the general public, raising awareness of
correctional issues.110 These secular activities of chaplains are positive side
effects of their religious activities. Having a neutral party who can facilitate
resolution of conflict between prisoners or between prisoners and staff can
stop problems in the early stages before they escalate. Having access to a
listening ear who is bound by confidentiality can improve the morale of
inmates.
B. Subjective Benefits of Religious Accommodation
Although much religious worship takes place in a community of likeminded believers, religion is, at its core, a subjective experience. How one
person experiences the divine is different from how another person does,
sometimes even within the same faith tradition. This experience is not
scientifically measurable or testable, so reports of personal religious
experience must be taken at face value.
With this in mind, a team of sociologists conducted anthropological
studies and interviews with prisoners in several prisons and asked them
about the role religion played in their prison experience.111 To protect the
privacy of the inmates, their stories have been anonymized in the published
study. The researchers found that the practice of religion increased morale
and helped the prisoners to cope with the stresses of incarceration.112
Religion also helped the inmates to become rehabilitated.113 The study was
restricted to Christians and Muslims because those were the only two
religions with a large enough inmate population to observe. However, since
religion, in whatever form it takes, is important to adherents, the benefits of
religious exercise in prison likely would extend to inmates of other faiths as
well.

109

See, e.g., New Jersey Institutional Chaplain’s Association, The Role of the
Professional Correctional Chaplain, (available at http://njica.org/chaplains.html, last
visited December 13, 2010).
110
Id.
111
Clear, et. al., supra note 107.
112
Id.
113
Id.

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1. Increased morale
One inmate stated that prison “takes your self-esteem, your dignity, and
everything about you. Religion has helped me to regain this.”114 Another
inmate reported, “Suddenly, I found myself alone and with no one. That is
when religion and belief in God became stronger. It kept me sane.”115 Prison
is not conducive to good mental health,116 so facilitating the practice of
religion can help to reduce problems.117
For religious individuals, faith and its obligations can be a source of
comfort and coping. Many religious traditions are more concerned with the
spiritual realm as opposed to the physical realm,118 which can be immensely
helpful in prison, where the physical realm is marked by confinement and
lack of freedom.119
2. Rehabilitation
Rehabilitation is one goal of the criminal justice system, and allowing
religious exercise in prison is a way to meet this goal. Guilt is a large part of
the prison experience. Incarceration is a message sent by society that the
prisoner is unfit to live among the population. This message is often not
well-received. One inmate said “If you talk to everyone here, they’ll tell you
they’re in prison because of a mistake. Most of them, it was a bad attorney,
a judge, a stupid mistake in the way they did the crime. The religious
inmate ... realizes the mistake was doing the crime in the first place.”120
By recognizing that he or she has made a mistake, a prisoner has taken
a step toward reform. If religion helps spur that realization, then it is a
positive force. Many religions teach a message of forgiveness, reformation,
or redemption. By allowing inmates to practice their religion, they can gain
added assistance in dealing with that guilt and turning their lives around.
Generally, an individual with religious beliefs will feel motivated to act
upon those beliefs. The adherent feels that God requires something of him
or her. Accommodating the divinely mandated practice assists in
rehabilitation because if the prisoner feels obligated to do or refrain from
doing something, the failure to live up to that obligation can create another
source of guilt.
114

Id. at 62
Id.
116
See e.g. Prison Mental Health Crisis Continues to Grow, Rich Daly, Psychiatric
News October 20, 2006 Volume 41, Number 20, Page 1.
117
While religion is not a cure-all for mental illness, healthy coping strategies, of
which religion can play a part, can help the emotional health of individuals who may
otherwise develop problems in the absence of a coping mechanism.
118
Clear, et. al. supra note 107 at 62.
119
Id.
120
Id. at 60.
115

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In addition to relieving feelings of guilt, religious practice can provide
an alternative to the prior destructive life patterns that caused the inmate to
become incarcerated.121 One of the interviewed inmates described his
religion as “a guide not to get out of hand.”122 Another inmate reported that
the religious conversion he experienced in prison caused him to consider the
consequences of his actions and made him more conscious of everything he
does.123
CONCLUSION
The prison population contains a diverse group of religious adherents.
Some religious practices such as dress or dietary observances conflict with
general prison rules. The Religious Land Use and Institutionalized Persons
Act requires accommodation of those practices unless there is a compelling
government interest in restricting the practice, and the burden on that
practice is the least restrictive means of achieving that interest. Prison
security can trump religious exercise, but only to the minimal extent
necessary to achieve the security interest. Cost is also a compelling interest,
but it is much easier to overcome by means less restrictive than banning a
religious exercise. By following the requirements of RLUIPA, prison
officials can reduce the number of lawsuits filed and can successfully
defend themselves against prisoner lawsuits.
In addition to protecting the states against successful lawsuits,
accommodation of religious practices increases prison safety, increases the
morale of prisoners, and facilitates the rehabilitation of prisoners.
Accordingly, prison officials should work with inmates, chaplains, and
others to ensure the maximum possible accommodation of religious
practices for those who are incarcerated.

121

Id. at 61.
Id. at 60.
123
Id. at 61.
122